973.075 AnnotationThe critical inquiry under sub. (1) (b) is not whether the vehicle was used in a crime, but whether property carried by the vehicle was used in a crime. State v. One 1971 Oldsmobile Cutlass Automobile, 159 Wis. 2d 718, 464 N.W.2d 851 (Ct. App. 1990).

973.075 AnnotationOwnership under sub. (1) (b) 2. [now sub. (1) (b) 2m. b.] is not controlled by legal title, but will be found based on consideration of possession, title, control, and financial stake. State v. Kirch, 222 Wis. 2d 598, 587 N.W.2d 919 (Ct. App. 1998), 98-0582.

973.075 AnnotationA punitive forfeiture violates the prohibition against excessive fines in the U.S. Constitution if it is grossly disproportional to the gravity of the defendant’s offense. Whether a forfeiture is far in excess of the maximum fine is a factor appropriately considered. State v. Boyd, 2000 WI App 208, 238 Wis. 2d 693, 618 N.W.2d 251, 99-2633.

973.075 AnnotationFor purposes of the statutory “innocent owner” exception in this case, while one co-titleholder had the largest financial interest in the forfeited vehicle, the second co-titleholder, who used the vehicle in drug sales, was the actual owner of the vehicle when that second titleholder had nearly complete possession and control of the vehicle and paid for insurance, gas, and maintenance while the first titleholder had a different vehicle of her own. However, while forfeiture of the vehicle and second titleholder’s financial interest in it was constitutional, forfeiture of the first titleholder’s full financial interest in the vehicle was unconstitutional under the excessive fines clause. State v. One 2013, Toyota Corolla, 2015 WI App 84, 365 Wis. 2d 582, 872 N.W.2d 98, 14-2226.

973.075 AnnotationA law enforcement agency may not retain unclaimed contraband money for its own use. In the absence of an asset forfeiture proceeding initiated by the state or a judicial determination that the money constitutes contraband, a local law enforcement agency should dispose of the money as unclaimed property under s. 59.66 (2). OAG 10-09.

973.076(1)(a)(a) Type of action; where brought. In an action brought to cause the forfeiture of any property specified in s. 342.30 (4) (a) or s. 973.075 (1), the court may render a judgment in rem or against a party personally, or both. The circuit court for the county in which the property was seized shall have jurisdiction over any proceedings regarding the property when the action is commenced in state court. Subject to s. 973.075 (1r), any property seized may be the subject of a federal forfeiture action.

973.076(1)(b)1.1. The district attorney of the county within which the property was seized or in which the defendant is convicted shall commence the forfeiture action within 30 days after the seizure of the property or the date of conviction, whichever is earlier, and the forfeiture proceedings shall be adjourned until after the defendant is convicted of any charge concerning a crime which was the basis for the seizure of the property. If property is seized, a charge shall be issued within 6 months after the seizure, except that an unlimited number of 6-month extensions may be granted if, for each extension, a judge determines probable cause is shown and the additional time is warranted. If no charge is issued within 6 months after the seizure, or a 6-month extension is not granted, the seized property shall be returned to the owner. The forfeiture action shall be commenced by filing a summons, complaint and affidavit of the person who seized the property with the clerk of circuit court, provided service of authenticated copies of those papers is made in accordance with ch. 801 within 90 days after filing upon the person from whom the property was seized and upon any person known to have a bona fide perfected security interest in the property.

973.076(1)(b)1m.1m. Upon motion by the prosecuting attorney, the court may waive the conviction requirement under subd. 1. if the prosecuting attorney shows by clear and convincing evidence that any of the following applies:

973.076(1)(b)2.2. Upon service of an answer, the action shall be set for hearing within 60 days of the service of the answer but may be continued for cause or upon stipulation of the parties.

973.076(1)(b)3.3. In counties having a population of 750,000 or more, the district attorney or the corporation counsel may proceed under subd. 1.

973.076(1)(b)4.4. If no answer is served or no issue of law or fact has been joined and the time for that service or joining issue has expired, or if any defendant fails to appear at trial after answering or joining issue, the court may render a default judgment as provided in s. 806.02.

973.076(2m)(a)(a) In addition to any penalties under this chapter, the court shall, with due provision for the rights of innocent persons in accordance with sub. (5), order forfeiture of any property specified in s. 973.075 (1) in accordance with pars. (b), (c), and (d).

973.076(2m)(b)(b) A criminal complaint must allege the extent of property subject to forfeiture under this subsection. At trial, the court or the jury shall return a special verdict determining the extent of property, if any, that is subject to forfeiture under this subsection. When a special verdict contains a finding of property subject to a forfeiture under this subsection, a judgment of criminal forfeiture shall be entered along with the judgment of conviction under s. 972.13.

973.076(2m)(c)(c) An injured person has a right or claim to forfeited property or the proceeds derived from forfeited property under this subsection that is superior to any right or claim the state has in the property or proceeds. This paragraph does not grant the injured person priority over state claims or rights by reason of a tax lien or other basis not covered by this section or by s. 973.075 or 973.077. All rights, titles, and interest in property specified in s. 973.075 (1) vest in the state upon the commission of the act giving rise to forfeiture under this subsection.

973.076(2m)(d)(d) An injured or innocent person may petition the court for relief from the judgment of criminal forfeiture entered under par. (b) within 30 days after it is entered. The person filing the petition has the burden of satisfying or convincing to a reasonable certainty by the greater weight of the evidence that the person has a bona fide perfected security interest in the property subject to forfeiture in s. 973.075 (1) or any other property subject to forfeiture in sub. (4). The court may order that a person with a bona fide perfected security interest be paid from the proceeds of the forfeiture or any other equitable relief necessary so as to do substantial justice to the person.